Citation Nr: 1320807	
Decision Date: 06/27/13    Archive Date: 07/05/13

DOCKET NO.  04-31 603	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Montgomery, Alabama


THE ISSUES

1.  Entitlement to service connection for sleep apnea, as due to herbicide exposure, and including as secondary to service-connected disabilities.

2.  Entitlement to service connection for a low back disability.

3.  Entitlement to service connection for a left hip disability.

4.  Entitlement to service connection for a left knee disability.

5.  Entitlement to a rating higher than 50 percent for posttraumatic stress disorder (PTSD).

6.  Entitlement to a total disability rating based on individual unemployability due to service connected disabilities (TDIU).




REPRESENTATION

Appellant represented by:	The American Legion


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

Biswajit Chatterjee, Counsel


INTRODUCTION

The Veteran served on active duty in the United States Army from September 1966 to September 1968, including service in the Republic of Vietnam during the Vietnam Era.  He had subsequent service in the Alabama National Guard, including a confirmed period of active duty for training (ACDUTRA) from July 20, 2002, to August 3, 2002.

This appeal to the Board of Veterans' Appeals (Board) is from multiple rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama.  The RO's September 2003 rating decision denied a claim for a TDIU.  An October 2004 rating decision denied service-connection claims for left knee and low back disabilities and a September 2006 rating decision denied a service-connection claim for a left hip disability.  Lastly, the RO's January 2008 rating decision denied a service-connection claim for sleep apnea and a claim for a rating higher than 50 percent for PTSD.  

The Veteran testified at a hearing at the RO in February 2010, before the undersigned Acting Veterans Law Judge.  A transcript of the hearing is associated with the claims file.  The issues on appeal were adequately explained to him and the submission of evidence which he may have overlooked and which would be advantageous to his position was suggested.  See 38 C.F.R. § 3.103(c) (2012). 

In September 2010 and again in May 2012, the Board remanded the case to the RO, via the Appeals Management Center (AMC), for additional development and consideration.  In January 2013, the AMC issued a supplemental statement of the case (SSOC) continuing to deny the claims and returned the file to the Board for further appellate review.  

The issues of entitlement to an increased rating for PTSD and a TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.


FINDINGS OF FACT

1.  Obstructive sleep apnea did not have its onset in service and is not attributable to service, including as due to presumed in-service herbicide exposure.  Sleep apnea is not shown to be causally related to or chronically aggravated by any of the Veteran's service-connected disabilities (PTSD, Type II, Diabetes Mellitus, diabetic peripheral neuropathy of the bilateral upper and lower extremities, erectile dysfunction associated with diabetes, tinnitus, bilateral hearing loss and left ankle status-post sprain).

2.  The probative evidence of record shows the Veteran's present low back, left hip and left knee disabilities preexisted a period of service, but underwent no increase in severity during a period of active military service, including a period of ACDUTRA from July 2002 to August 2002 in the Alabama National Guard.  There is no contention or indication in the record that these present disabilities were incurred during a period of active duty in the Vietnam Era.



CONCLUSIONS OF LAW

1.  Obstructive sleep apnea is not a result of disease or injury incurred in or aggravated by service, including as due to presumed in-service herbicide exposure; may not be presumed to have been incurred in service; and is not secondary to any service-connected disability.  38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5103(a), 5103A (West 2002); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309, 3.310 (2012).

2.  Low back, left hip and left knee disabilities were not incurred in or aggravated by service.  38 U.S.C.A. §§ 101, 1110, 1111, 1112, 1137, 1153, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.1, 3.6, 3.102, 3.159, 3.303, 3.304, 3.306 (2012).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  VA Duties to Notify and Assist

Before addressing the merits of the issues decided below (service-connection claims for sleep apnea, low back, left hip and left knee disabilities), the Board notes that VA has a duty to notify and a duty to assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. §§ 3.159, 3.326(a).

Proper notice from VA must inform the claimant and his representative, if any, prior to the initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ) of any information and any medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  These notice requirements apply to all five elements of a service-connection claim (Veteran status, existence of a disability, a connection between the Veteran's service and the disability, degree of disability, and effective date of the disability).  Dingess v. Nicholson, 19 Vet. App. 473 (2006).  Information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded must be included.  Id.

Neither the Veteran nor his representative has alleged prejudice with respect to notice, as is required.  See Shinseki v. Sanders, 129 S. Ct. 1696 (2009); Goodwin v. Peake, 22 Vet. App. 128 (2008); Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007).  None is found by the Board.  

VA's duty to notify under 38 C.F.R. § 3.159(b)(1) has been met by a letter from the RO issued in January 2004 (low back disability), March 2004 (left knee disability), March 2005 (left knee and low back disabilities), March 2006 (left hip disability), and September 2007 (sleep apnea) of the criteria for establishing service connection, the evidence required in this regard, and his and VA's respective duties for obtaining evidence.  A generally applicable March 2006 notice provided notice compliant with the principles of Dingess, as did the more specific September 2007 letter (sleep apnea).  Since providing these notices, the claims were readjudicated in a January 2013 supplemental statement of the case  

Relevant to the duty to assist, the Board finds that all necessary development as to the issues addressed in this decision has been accomplished, and that appellate review may proceed without prejudice to the Veteran.  The Veteran's service treatment records, post-service VA treatment records, private treatment records, and Social Security Administration (SSA) disability records have been obtained and considered.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.  The Veteran has not identified any additional, outstanding records that have not been requested or obtained that are pertinent to the claim.  Although the Veteran identified, in a June 2012 statement, the potential existence of VA treatment records for a July 2012 oral surgery, there is no indication that such records have any material bearing upon the disposition of his sleep apnea claim or any of the orthopedic disabilities also decided herein.  The Board notes that that a diagnosis of obstructive sleep apnea is of record and that the pertinent matter for appellate review concerns a nexus to service which is not likely to be addressed in conjunction with surgical treatment.  Neither the Veteran nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of these claims.

The Veteran was provided an opportunity to set forth his contentions at a hearing before the undersigned, Acting VLJ in February 2010.  In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) requires that the DRO who chairs a hearing to fulfill two duties: (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked.  Here, during the February 2010 hearing, the hearing officer/Acting VLJ identified the issues on appeal as including claims for service connection for sleep apnea, low back, left hip and left knee disabilities.  Not only were the issues "explained . . . in terms of the scope of the claim for benefits," but "the outstanding issues material to substantiating the claim" were also fully explained.  Id. at 497.  Moreover, partly on the basis of the hearing discussion, the undersigned remanded these claims in September 2010 for VA examination and etiological opinions.  

Accordingly, the Board remanded this claim in September 2010 for examination and medical opinion on the nature and etiology of the present sleep apnea and orthopedic disabilities (left knee, left hip and low back), as well as obtaining any outstanding treatment records relevant to these claims.  The AMC followed these remand directives by obtaining outstanding medical records, and arranging for relevant examination and medical etiological opinions by the November 2010 VA examination on sleep apnea, low back disability, left hip disability and left knee disability.  However, to ensure the record contained comprehensive and adequate medical opinions on the etiology of these claims, the Board again remanded these claims in May 2012 for further VA examination and medical etiological opinions.  
On remand, the AMC arranged for VA examinations on the Veteran's claimed sleep apnea, low back disability, left knee disability and left hip disability, and as discussed above, the examiner provided thorough and adequate opinions for resolving these claims.  So there was compliance with these remand directives.  See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (holding that there was no Stegall v. West, 11 Vet. App. 268, 271 (1998), violation when the examiner made the ultimate determination required by the Board's remand).  

As mentioned, on initial remand from the Board, the Veteran was afforded appropriate VA examinations and medical opinions in November 2010 on the service-connection claims on appeal, and again in June 2012 upon further remand by the Board.  Altogether, the Board finds that the VA examination and accompanying opinions are adequate to decide these issues, as they are predicated on an interview with the Veteran, a review of the record, and a physical examination with diagnostic testing.  Indeed, the June 2012 VA examination report was obtained upon remand by the Board for the purpose of providing comprehensive and adequate opinions.  On remand, the June 2012 examiner's opinions proffered considered all of the pertinent evidence of record, to include the statements of the Veteran, and provided a complete rationale, relying on and citing to the records reviewed.  Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to these issues has been met.  38 C.F.R. § 3.159(c)(4).

The Board concludes that all the available records and medical evidence has been obtained in order to make an adequate determination as to these claims.  Hence, no further notice or assistance is required to fulfill VA's duty to assist in the development of the claims.  Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002).  Therefore, the Board finds that VA has complied with the duty-to-assist requirements.  38 U.S.C.A. § 5103A.  

II.  Analysis of Service-Connection Claims for Sleep Apnea, Low Back, Left Hip and Left Knee Disabilities

Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service.  38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a).  Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).  

As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service.  Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996).   

A.  Sleep Apnea

The Veteran claims that he has sleep apnea that resulted from his presumed in-service exposure to herbicides while serving in Vietnam, or in the alternative, was caused or aggravated by his service-connected PTSD or other service-connected disabilities.  

Initially, the Board acknowledges that the Veteran presently has been diagnosed with obstructive sleep apnea by the November 2010 and June 2012 VA examiners.  So, this element of his claim is not in dispute.  Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000).  

A Veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7,1975, is presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to the contrary. 38 C.F.R. § 3.307(a)(6)(iii).  Certain diseases associated with exposure to certain herbicide agents used in support of military operations in the Republic of Vietnam (Vietnam) during the Vietnam era will be considered to have been incurred in service.  38 U.S.C.A. § 1116(a)(1); 38 C.F.R. § 3.307(a)(6).  In general, VA has determined there is no positive association between exposure to herbicides and any other condition for which the Secretary has not specifically determined that a presumption of service connection is warranted.  See 75 Fed. Reg. 32540 (Jun. 8, 2010).

Here, the Board finds the Veteran is presumed to have been exposed to herbicides, since his DD Form 214 confirms he served in the Republic of Vietnam in the U.S. Army from September 1966 to September 1968, during the Vietnam War.  38 C.F.R. § 3.307(a)(6)(iii).  Nonetheless, the criteria for presumptive service connection based on herbicide exposure have not been satisfied, because his sleep apnea is not among the list of enumerated diseases for which service connection may be granted based on presumed herbicide exposure during service.  Such diseases are listed under 38 C.F.R. § 3.309(e), but do not include any type of sleep apnea.  

However, even if a Veteran is found not entitled to a regulatory presumption of service connection, the claim still must be reviewed to determine whether service connection may be established on a direct-incurrence basis.  As discussed below, the Veteran has not established two key elements of direct service connection.  Namely, there is no in-service incurrence of the obstructive sleep apnea and no competent evidence linking the current sleep apnea to service, including due to presumed herbicide exposure.  Moreover, the evidence does not establish entitlement to service connection for obstructive sleep apnea based on a secondary relationship to or chronic aggravation by any of his service-connected disabilities.  

As for the possibility of in-service incurrence of sleep apnea, his service treatment records during his periods of active duty service and ACDUTRA are unremarkable for complaint, treatment or diagnosis of any sleep disorder or sleep problems.  

Next, the Board considers whether there is any competent evidence that etiologically links his current obstructive sleep apnea to his military service, including as due to presumed herbicide exposure.  However, the medical opinions of record have specifically discounted that his present sleep apnea is attributable to service, let alone to presumed herbicide exposure during service.  In fact, a November 2010 VA examiner opined against the possibility of direct service connection, finding that sleep apnea was "less likely as not" caused by or a result of military service, to include exposure to herbicides.  

Regarding the question of secondary service connection, there is no medical evidence of a nexus (i.e., link) between the obstructive sleep apnea and any other service-connected disability, such as his service-connected PTSD.  Service connection may be established on a secondary basis for disability that is proximately due to or the result of a service-connected condition.  See 38 C.F.R. § 3.310(a).  Secondary entitlement is also available when a service-connected condition has chronically, or permanently, aggravated the disability in question, but compensation is limited to the degree of disability (and only that degree) over and above the degree of disability existing prior to the aggravation.  See 38 C.F.R. § 3.310(b); see also Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc).

In this regard, the November 2010 VA examiner concluded that sleep apnea was less likely caused or aggravated by the Veteran's service-connected PTSD.  By way of rationale, the November 2010 VA examiner indicated that sleep apnea is a separate condition from PTSD, and that the literature does not support a link between sleep apnea and PTSD, or between sleep apnea and herbicide exposure.  

Subsequent to the November 2010 examination, the Veteran asserted that his sleep apnea was secondary to the side effects of the medications, or combinations of medications he currently takes to treat his service-connected disabilities, to include medications for PTSD, diabetes, bilateral upper and lower peripheral neuropathy, a left ankle disability and erectile dysfunction.  See Veteran's February 2012 supporting statement.  He submitted both a list of his current medications and medical treatise information suggesting that sleep trouble can be a side effect of certain medications.  See, e.g., the Internet resource information entitled "Venlafaxine Side Effects", page 7 [noting that one possible respiratory side effect of this medication for depression could be sleep apnea].  Accordingly, the Board again remanded the sleep apnea claim in May 2012 so that the AMC could provide another VA examination and medical etiological opinion to address a potential relationship between the Veteran's sleep apnea and the medications he must take to treat his service-connected disabilities.  The Board requested a medical opinion as to whether it is as likely as not (50 percent or higher probability) that the Veteran has sleep apnea that was either caused by or chronically aggravated by another service-connected disability, to include any medication or any combination of medications taken to treat service-connected PTSD, bilateral peripheral neuropathy of the upper and lower extremities, diabetes mellitus, a left ankle disability, hearing loss, tinnitus and erectile dysfunction.  

A June 2012 VA examiner opined that "[h]is sleep apnea is less likely as not (less than 50 percent) related to, caused by or aggravated by his time in the service (including Agent Orange) and/or well documented service-connected conditions (including the Rx [(prescriptions)] for their treatment."  

The June 2012 VA examiner provided a well-considered, thorough and multi-factorial rationale including:  (1) that the onset and diagnosis of the obstructive sleep apnea is well documented in the VA notes and also in the claims file; (2) that there is no evidence for this condition occurring in the service based on review of the service treatment records, as all of the evidence shows that the onset was in the 2000s, decades after service, and sleep apnea is not a presumptive Agent Orange condition; (3) that the causes of obstructive sleep apnea are craniofacial abnormalities (congenital or from trauma), oropharyngeal crowding, increased neck circumference and obesity; (4) that with respect to obesity, this Veteran's BMI is less than 30, his weight has been stable for 12 years before and after the OSA diagnosis...and "this goes against the weight gain due to the Rx [(referring to prescription medications, presumably from his service-connected disabilities)]; (5) that the prescriptions he is on have some side effects of sedation, however, the type of sleep apnea that he has is obstructive, not central; and (6) that the most likely cause of his obstructive sleep apnea is due to his well-documented sinus/nasal conditions.  

Given the VA examiner's review of the claims file, personal interview of the Veteran, physical examination, and discussion of the rationale of the opinion, the Board finds the VA examiner's opinion is persuasive.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) ("It is the factually accurate, fully articulated, sound reasoning for the conclusion, not the mere fact that the claims file was reviewed, that contributes probative value to a medical opinion.").

The Board has considered the lay statements of the Veteran and his spouse asserting a continuity of snoring and sleep problems since return from Vietnam and as a result of his service-connected PTSD and medications from various service-connected disabilities.  See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); 38 C.F.R. § 3.159(a)(2).  Moreover, even accepting these statements as competent and credible, such continuity of symptoms does not serve to establish service connection.  As sleep apnea is not a not a "chronic disease" listed under 38 C.F.R. § 3.309(a), the provisions for chronicity and continuity under 38 C.F.R. § 3.303(b) do not apply.  See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).  

Further, neither the Veteran nor his spouse are shown to be competent to etiologically link his presently diagnosed obstructive sleep apnea to military service in Vietnam, including as due to his presumed herbicide exposure, because establishing a nexus to service generally requires specialized medical expertise that they do not purport to have.  Similarly, they are not competent to assert that any of his service-connected disabilities and their medications caused or aggravated his sleep apnea, on a theory of secondary service connection, as this too requires specialized medical expertise beyond their ability as lay persons.  

In light of the above discussion, the Board concludes that the evidence does not support the claim for service connection for obstructive sleep apnea, including on a secondary basis to any service-connected disability and as due to presumed herbicide exposure.  Thus, there is no doubt to be otherwise resolved.  As such, the appeal is denied.

B.  Low Back, Left Hip and Left Knee Disabilities

The Veteran contends that he has current low back, left hip, and left knee disabilities that were caused or aggravated when he fell into a hole in July 2002, during a period of ACDUTRA while in the National Guard.  In contrast, there is no contention or indication in the record that these present disabilities were alternatively incurred during his period of active duty in the Vietnam Era.  

A Veteran is "a person who served in the active military, naval, or air service, and who was discharged or released there from under conditions other than dishonorable."  38 U.S.C.A. § 101(2); 38 C.F.R. § 3.1(d).  ACDUTRA is, among other things, full-time duty in the Armed Forces performed by Reserves for training purposes or by members of the National Guard of any state.  38 U.S.C.A. § 101(22); 38 C.F.R. § 3.6(c)(1).  

ACDUTRA is not defined as "active" service unless the individual concerned was disabled or died from a disease or injury incurred or aggravated in the line of duty while performing ACDUTRA.  38 U.S.C.A. § 101(24); 38 C.F.R. § 3.6(a).  

A claimant whose claim is based on a period of ACDUTRA or inactive duty for training (INACDUTRA) cannot be entitled to the presumption of service connection for various diseases.  Smith v. Shinseki, 24 Vet. App. 40, 47 (2010); see also 38 U.S.C.A. §§ 101(24)(B), 1112, 1137; 38 C.F.R. §§ 3.6(a), 3.307(a).  By definition, the presumption of service connection only applies where there is no evidence that a condition began in or was aggravated during the relevant period of service.  In contrast, a claimant whose claim is based on a period of ACDUTRA or INACDUTRA must establish some evidence that his or her condition was incurred or aggravated during the relevant period of service.  Id.  

Therefore, as applies to this case, consideration of 38 C.F.R. §§ 3.307 and 3.309 (presumption of service incurrence for certain disease) for periods of ACDUTRA or INACDUTRA is not appropriate.

The presumption of soundness under 38 U.S.C.A. § 1111 does not apply when a claimant, Veteran or otherwise, has not been examined contemporaneous to entering a period of ACDUTRA.  Smith v. Shinseki, 24 Vet. App. 40, 45 (2010).  In other words, the presumption of soundness generally does not apply to a period of ACDUTRA (or INACDUTRA), unless a claimant had an entrance examination with no defects noted, prior to entering the period of ACDUTRA during which the injury or disease occurred.  The presumption of aggravation under 38 U.S.C.A. § 1153 also does not apply to ACDUTRA or INACDUTRA service.  Id.  See also Acciola v. Peake, 22 Vet. App. 320 (2008); Mercado-Martinez v. West, 11 Vet. App. 415, 419 (1998); Paulson v. Brown, 7 Vet. App. 466, 470 (1995).

Establishing "Veteran" status based on aggravation during ACDUTRA is explained in Donnellan v. Shinseki, 24 Vet. App. 167, 172 (2010).  "Aggravated" under 38 U.S.C.A. § 101(24) has the same meaning as "aggravated" under 38 U.S.C.A. § 1153 -"a preexisting injury or disease will be considered to have been aggravated by active . . . service, where there is an increase in disability during such service, unless there is specific finding that the increase is due to the natural progress of the disease."  24 Vet. App. at 172-173.  Proving aggravation must include both elements:  1) there was an increase in disability as to a preexisting injury or disease, and 2) such an increase was beyond the natural progress of that injury or disease.  See id.

Upon review of the evidence of record, the Board must deny the appeal for service connection claims for low back, left knee and left hip disabilities.  The Veteran is shown to have present disabilities by the June 2012 VA examiner concerning his left knee, left hip and low back.  Taking into account his complaints of pain in these areas, this VA examiner, upon X-ray testing, provided diagnoses of degenerative disc disease and arthritis to the back; left knee arthritis and meniscal tear; and left hip arthritis.  Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000).

Concerning the Veteran's period of ACDUTRA from July to August 2002, there was no entrance examination proximately preceding this period of ACDUTRA.  The Veteran's service personnel records include a July 2002 Line of Duty report documenting that he fell in a hole injuring his ankle while serving on active duty for training (ACDUTRA).  A subsequent National Guard service record dated in August 2002, so also during his period of ACDUTRA, noted the Veteran stated that while working as a medic he also hurt his back and hip in the fall in July 2002.  The Veteran testified that he injured his back, hip and knee when he fell.  The Board a conceded in its September 2010 remand that the Veteran suffered an injury, at least to a limited extent, to his low back, left hip, and left knee in July 2002.  See February 2010 Board hearing transcript; Veteran's July 2002 Statement of Medical Examination and Duty Status; Veteran's August 2002 statement.

In this case, there is also evidence of record demonstrating that the Veteran injured his low back, left hip, and left knee prior to his July 2002 injuries.  This medical evidence shows low back, left hip and left knee disabilities pre-existed his period of ACDUTRA service from July to August 2002.

Workers Compensation physical therapy reports dated in 2001 indicate that an object fell on the Veteran at his civilian employment in December 2000 causing a meniscus tear in his left knee.  See the February 15, 2001 Workers Compensation Initial Evaluation.  The Veteran underwent arthroscopic knee surgery, and was diagnosed with internal derangement of the left knee in May 2001.  Private treatment records dated immediately following the December 2000 injury also indicate contusions and strains of the hip, and note the Veteran's complaints of low back pain.  X-rays of the Veteran's pelvis taken in February 2001 indicated that the Veteran had "a little sclerosis of the SI joint and fairly thick calcified labrum more on the left than the right."  A diagnoses of a herniated lumbar disc was provided in May 2001.  See the Veteran's private treatment reports supplied by the Veteran's construction company, dated from December 2000 to May 2001.  

Although the Veteran acknowledges that he injured his back, knee, and hip at his civilian occupation prior to his July 2002 fall, he nonetheless asserts that his hip condition resolved before he entered into his July 2002 period of ACDUTRA service.  See July 2008 substantive appeal (VA Form 9).  

Post-July 2002 treatment records show continued treatment for left knee, low back, and hip pain following the Veteran's fall.  

For instance, with respect to the Veteran's low back, a June 2004 VA treatment report noted the presence of "obvious paraspinous muscle spasm and also tenderness to palpation in the lower lumbar region."  A 2005 MRI report revealed disc bulges at multiple levels of the lumbar spine, with disc extrusion and nerve impingement.  A May 2005 private X-ray testing report from the Veteran's chiropractor, Dr. P.H.C., indicated that the Veteran had pain in his hip and low back, and noted a diagnosis of subluxation of the lumbar spine at the L1-5 segmental levels and segmental dysfunction of the sacrum and sacroiliac junctions.  Then, the April 2008 VA examination report contains X-rays testing several years after the Veteran's July 2002 in-service fall, which demonstrate that the Veteran subsequently developed minor narrowing at the medial joint spaces, with a "question of a small osteochondral body in the left knee."  X-ray testing from the April 2008 exam also found impingement on the right L5 nerve root in the lateral recess at L4-5 by a paracentral disc extrusion.  

Upon X-ray testing in November 2010 a VA examiner noted degenerative disc disease (DDD) of the lumbar spine, and mild degenerative joint disease (DJD/arthritis) of both the left hip and left knee.  A June 2012 VA examiner also provided diagnoses of thoracolumbar spine DDD and arthritis, left knee arthritis and left knee meniscal tear, and left hip arthritis.  

In September 2010, the Board remanded the Veteran's service-connection claims for left hip, left knee, and low back disabilities for a VA examination and medical opinion on whether the Veteran's respective disabilities preexisted his July 2002 fall during ACDUTRA service, and if so, whether injuries sustained in the fall aggravated each disability beyond its normal progression.  

After reviewing the records and upon examination of the Veteran, a November 2010 VA examiner opined that the Veteran's low back, left hip and left knee disabilities did, in fact, preexist his July 2002 fall.  The examiner concluded that there was no evidence that such preexisting disabilities had been permanently aggravated beyond natural progression by the July 2002 fall.  By way of rationale, the examiner noted that "the records are silent with regards to left hip, left knee and low back pain following the documented fall in [J]uly, 2002."  

However, the November 2010 VA examiner's opinion failed to acknowledge the treatment reports noting continuing complaints of back, hip and knee pain following the July 2002 fall.  Inadequate medical examinations include examinations that contain only data and conclusions, do not provide an etiological opinion, are not based upon a review of medical records, or provide unsupported conclusions.  Nieves- Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007).  Accordingly, in May 2012, the Board again remanded these service-connection claims to afford the Veteran another VA examination of his left knee, left hip and low back.

Upon the latest remand from the Board, the AMC provided the Veteran a VA examination in June 2012 on his left knee, left hip and low back claims.  The Veteran complained of progressively worsening pain of the spine, left knee and left hip that apparently began prior to ACDUTRA service in 2002, and had continued to the present.  However, the June 2012 VA examiner opined that his low back, left knee and left hip disabilities pre-existed ACDUTRA service in 2002, stating that "there is clear [italicized for emphasis] evidence that he had symptoms of these conditions in both the VA and private medical notes."  

The June 2012 VA examiner in turn provided a well-considered and thorough rationale based on the following:  (1) "As stated above, there is solid [italicized for emphasis] medical evidence that all the conditions were present before the 2002 incident."; (2) the nature of the incident [during ACDUTRA in 2002] based on review of the data was minor with respect to traumas, and there is no medical evidence that, aside from sprains and contusions, there would have been any more significant residuals from this incident; (3) the private and VA notes after the incident do not show an increase in symptoms immediately after the accident or event within a couple of years of the accident; (4) it is only within the past couple of years that the medical evidence shows that the conditions have progressed and this is all within the natural progression of the disease; (5) he has had other falls after the 2002 event, which coincides more with the progression of the current conditions; and (6) comparison of the imaging results before and after the 2002 event do not show any aggravation of the conditions."  

Given the VA examiner's review of the claims file, personal interview of the Veteran, physical examination, and discussion of the rationale of the opinion, the Board finds the VA examiner's opinion is persuasive.  

Therefore, the totality of the evidence demonstrates that the Veteran's low back, left hip and left knee disabilities preexist his period of ACDUTRA, specifically including his July 2002 in-service injury.  Moreover, although the Veteran is competent to observe pain, spasms, etc. in his low back, left hip and left knee during and since his period of ACDUTRA in July 2002, he is not also competent as a lay person to provide evidence support either the notion that his present disabilities were aggravated by service, especially beyond their natural progress.  Such findings require specialized medical expertise and diagnostic medical testing, including X-ray reports.  VA medical examiners in this case have specifically rejected the possibility that his pre-existing orthopedic disabilities were aggravated by his 2002 ACDUTRA service.

There is no probative indication that any worsening of his low back, left hip and left knee was caused by his period of ACDUTRA service in July 2002.  More specifically, the claimant has not established that his preexisting conditions specifically worsened beyond the natural progress of those conditions during his short period of ACDUTRA in 2002.  

In light of the above discussion, the Board concludes that the evidence does not support the claims for service connection for a low back disability, left knee disability and left hip disability.  Because there is no doubt to be otherwise resolved, the appeal is denied.

ORDER

The claim for service connection for sleep apnea is denied.

The claims for service connection for low back, left hip and left knee disabilities are denied.


REMAND

Unfortunately, a remand is required for the remaining issues of entitlement to a rating higher than 50 percent for PTSD and a TDIU.  Although the Board regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claims so that he is afforded every possible consideration.  VA has a duty to make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefits sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim.  38 U.S.C.A. § 5103A(a) (West 2002); 38 C.F.R. § 3.159(c), (d) (2012).

I.  Outstanding VA Treatment Records

The Board remanded this case in May 2012, in part, with instructions to obtain VA treatment records.  On remand, VA treatment records for the Birmingham VA Medical Center (VAMC) dated through May 2012 were obtained.  

Subsequent to the last supplemental statement of the case (SSOC), issued in January 2013, the Veteran submitted a June 2012 statement noting that he had upcoming oral surgery at the Birmingham VAMC scheduled for July 2012 pertinent to his service-connection claim for sleep apnea.  He also asserted in a March 2013 statement that the Board should consider all of his more recent VA mental health treatment records, apparently dated since June 2012, the last VA treatment records available (currently associated with the Virtual VA claims file).  In that regard, he asserted such records would show that all of his mental health problems, including cognitive problems, are related to PTSD, not dementia.  In contrast, the June 2012 mental health examination indicated that the Veteran's cognitive problems are mostly due to dementia.  

The Board emphasizes that records generated by VA facilities that may have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file.  Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992).  The AMC should obtain and associate with the claims file all outstanding VA treatment records.

II.  Addendum Medical Opinion on TDIU

The Veteran has asserted that his PTSD symptomatology is so severe that it required him to quit his job as a school bus driver.  He has reported near continuous panic and depression, and asserts that he is unable to adapt to stressful situations.  See Veteran's February 2012 supporting statement.  

The Board recently remanded the increased rating claim for PTSD to the AMC to arrange for a current VA examination to assess the severity of his service-connected PTSD.  On remand, the AMC provided a VA mental health examination in June 2012.  The June 2012 VA examiner diagnosed PTSD and dementia, not otherwise specified.  The examiner assigned a GAF score of 55 for PTSD alone.  The examiner stated that the Veteran was working as a bus driver, but quit due to memory problems.  The examiner opined that PTSD likely contributes to problems with attention/concentration, and indicated that this can cause short-term memory problems, which would impact his occupational functioning although still able to function adequately in a job with more routine or repeated tasks.  However, the examiner stated that the majority of the Veteran's cognitive problems are related to a non-service-connected disability of dementia, but not related to his service-connected PTSD.  The examiner thus concluded that the Veteran is not considered unemployable due to his service-connected condition of PTSD.  

Moreover, the Board's May 2012 remand had also requested the VA examiner to provide a medical opinion concerning the collective impact of all of the Veteran's service-connected disabilities on his ability to secure or follow a substantially gainful occupation.  However, none of the June 2012 VA examiners provided the requested opinion on the TDIU claim as to the collective occupational impact of all of his service-connected disabilities.  In this respect, the June 2012 VA examinations did not adequately comply with the Board's May 2012 remand directive for a medical opinion on the TDIU issue.  Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97 (2008).  On remand, then, the AMC should arrange for the June 2012 VA examining clinical psychologist to provide an addendum opinion on the collective impact of all of the Veteran's service-connected disabilities on his ability to secure or follow a substantially gainful occupation.  

Accordingly, the case is REMANDED for the following action:

1.  Request that the Veteran provide the names, addresses, and approximate dates of treatment of all medical care providers, VA and non-VA, who provided any treatment pertinent to his PTSD and TDIU claims.  After the Veteran has signed the appropriate releases, any indicated records should be obtained and associated with the claims folder.  Whether or not the Veteran responds, appropriate efforts must be taken to obtain pertinent VA treatment records, unless further efforts would be futile.  All attempts to procure records should be documented in the file.  If records identified by the Veteran cannot be obtained he should be provided a notice to (a) identify the specific records VA is unable to obtain; (b) briefly explain the efforts made to obtain those records; (c) describe any further action to be taken by VA with respect to the claims; and (d) explain that he is ultimately responsible for providing the evidence.

2.  After completing the requested development in paragraph #1, request a supplemental medical opinion on the TDIU issue from the VA physician who provided the June 2012 VA compensation medical examination and opinion report.  The claims file, including a complete copy of this remand, must be made available for review of the Veteran's pertinent medical history.  The examiner should review all recent mental health treatment records, especially any dated after the June 2012 examination.  

The June 2012 VA physician is specifically requested to comment on the impact of all of the Veteran's service-connected disabilities on his ability to secure or follow a substantially gainful occupation and/or whether they have resulted in a marked interference with employability.  

If and only if pertinent medical evidence is received that is inconsistent with the last VA medical opinion should the AMC schedule the Veteran for an appropriate VA compensation examination, to determine the nature, frequency and severity of symptoms and manifestations of the Veteran's service-connected PTSD, as well as whether the PTSD renders the Veteran unemployable.  All indicated tests and studies, and any other diagnostic procedures deemed necessary, should be conducted.

Rationale for all requested opinions shall be provided.  If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so.  In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s).

3.  Ensure that the requested actions have been accomplished (to the extent possible) in compliance with this REMAND.  If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken.

4.  Then readjudicate the claims in light of any additional evidence.  If these claims are not granted to the Veteran's satisfaction, send him a Supplemental SOC and give him an opportunity to respond to it before returning the file to the Board for further appellate consideration of these claims.

The appellant has the right to submit additional evidence and argument on the matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

These claims must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§5109B, 7112 (West Supp. 2012).



______________________________________________
T. L. Douglas
Acting Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs